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ELCAllowedNot stated in the judgment· [2017] KEELC 774 (KLR)

Ngome Natala v Geoffrey L. Luseneka [2017] KEELC 774 (KLR)

High Court of Kenya
21 November 2017
NMN.A. MATHEKA
755 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court in Kakamega removed a caution on land, ruling a buyer refunded the purchase price cannot keep blocking a seller's property dealings.

What this practically means

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Executive summary

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The applicant, the defendant in the concluded suit and registered owner of land parcel No. N. KABRAS/MALAVA/4088, applied by notice dated 11th May 2017 for removal of a caution lodged by the respondent over the parcel, with costs. The applicant explained that after the suit was determined he needed to sell part of the land to settle the decretal sum, and that the Land Registrar's process for removal had been objected to by the respondent pending determination of the case. The respondent opposed, contending that he had purchased 2 ¾ acres out of land parcel NO. KAKAMEGA/MALAVA/1094 for Ksh. 675,000/= and that the defendant had failed to transfer the resulting parcel, No. KAKAMEGA/MALAVA/4088, to him; the suit had been determined by a decree ordering the defendant to refund the consideration with interest, and the respondent sought retention of the caution to preserve the title pending execution proceedings. Justice N.A. Matheka considered section 133(1) of the Registration of Land Act, which permits a caution to be withdrawn by the cautioner or removed by order of the court or the Registrar. Noting it was undisputed that the applicant was the registered owner and that the decree was for refund of the purchase price rather than specific performance, the court saw no reason to maintain the caution. Applying Moses Kariuki Wachira v Joseph Muriithi Kanyita & 3 Others (2010) eKLR, where Koome J held that a registered proprietor as absolute owner may deal with the premises as he deems fit, the court found the application merited, granted it as prayed, and awarded costs to the applicant.

Key legal issues

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Whether the caution on land parcel No. N. KABRAS/MALAVA/4088 should be removed after judgment

Holding

The application for removal of the caution was granted because the decree was for refund of the purchase price and not specific performance, leaving no justification for maintaining the caution against the registered owner's title

Reasoning

The court noted it was not in dispute that the applicant is the registered owner of the suit land. The respondent's suit had been determined by a decree ordering the defendant to refund Ksh. 675,000/= with interest. Since the award was a refund and not an order for specific performance (transfer of the land), the respondent had no basis to retain the caution. The applicant wished to sell part of the land to settle the decretal sum, and the court, applying Moses Kariuki Wachira v Joseph Muriithi Kanyita & 3 Others, found the registered owner entitled to deal with the property as absolute owner.

p. 3

Legal principles established

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  • A caution may be withdrawn by the cautioner or removed by order of the court or the Registrar under section 133(1) of the Registration of Land Act
  • Where a decree is for refund of the purchase price rather than specific performance, a registered owner is entitled to deal with the land and a caution ought to be lifted

Court orders

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  1. 1.The caution placed on land parcel No. N. KABRAS/MALAVA/4088 by the respondent is removed
  2. 2.Costs of the application awarded to the applicant

Authorities

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Legislation

  • Registration of Land ActSection 133(1)

Cases cited (1)

  • Moses Kariuki Wachira Vs Joseph Muriithi Kanyita & 3 Others
    (2010) eKLR
Jurisdiction invoked
Section 133(1) of the Registration of Land Act (removal of caution by order of the court)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ngome Natala v Geoffrey L. Luseneka [2017] KEELC 774 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/774/eng@2017-11-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.